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MADRAS HIGH COURT
SOMASUNDARAM
Bondalapati Thatayya
Versus
Gollapudi Basavayya and others;
Criminal Revn. Nos.195 and 208 of 1953 and Cri. Revn. Petn. Nos.180 and 190 of 1953
Decided On : 26 March, 1953
CRIMINAL PROCEDURE CODE - SECTION 144 - ORDER PASSED BY ADDITIONAL FIRST CLASS MAGISTRATE - WHETHER JUDICIAL OR ADMINISTRATIVE - WITHDRAWAL OF COMPLAINT - AUTHORITY COMPETENT - SECTION 195(5) - ADDITIONAL DISTRICT MAGISTRATE - WHETHER SUBORDINATE TO FIRST CLASS MAGISTRATE - SECTION 10(3) - INTERPRETATION.
Fact of the Case:
An order under Section 144, Criminal P.C. was passed by the Additional First Class Magistrate, Masulipatam, on a petition filed by one Bondalapati Thatayya against one Gollapudi Basavayya and 13 others. The respondents filed a petition to rescind the order, and while that petition was pending, Thatayya reported to the Station House Officer that the order had been violated by the respondents. The Additional First Class Magistrate filed a complaint for an offence under Section 188, Penal Code, which was withdrawn by the Additional District Magistrate. The respondents also filed a petition before the Additional District Magistrate for withdrawal of the complaint, which was allowed.
Finding of the Court:
The court held that the order passed by the Additional First Class Magistrate under Section 144, Criminal P.C. was a judicial order and that the Magistrate was acting as a Court when he passed the order. The court further held that the Additional District Magistrate was not the authority competent to withdraw the complaint filed by the Additional First Class Magistrate, as the Additional First Class Magistrate was subordinate to the District Magistrate and not to the Additional District Magistrate.
Issues: 1. Whether the order passed by the Additional First Class Magistrate under Section 144, Criminal P.C. was a judicial or administrative order? 2. Whether the Additional District Magistrate was the authority competent to withdraw the complaint filed by the Additional First Class Magistrate?
Ratio Decidendi: 1. The court held that the order passed by the Additional First Class Magistrate under Section 144, Criminal P.C. was a judicial order and that the Magistrate was acting as a Court when he passed the order. The court relied on the decision in Arunaehalam Pillai v. Ponnuswami Pillai, AIR 1919 Mad 610 (A), which held that an order under Section 144, Criminal P.C. is a judicial and not an administrative order. 2. The court held that the Additional District Magistrate was not the authority competent to withdraw the complaint filed by the Additional First Class Magistrate, as the Additional First Class Magistrate was subordinate to the District Magistrate and not to the Additional District Magistrate. The court relied on the decision in Prabhulal Ramlal v. Emperor, AIR 1944 Nag 84 (G), which held that an Additional District Magistrate is not a District Magistrate and that a Sub-Divisional Magistrate is not subordinate to an Additional District Magistrate.
Final Decision: The court set aside the order of the Additional District Magistrate withdrawing the complaint filed by the Additional First Class Magistrate and relegated the parties to the position of a complaint being filed by the Additional First Class Magistrate against the respondents for an offence under Section 188, Penal Code.
ORDER :- The above two petitions arise out of an order passed by the Addil. First Class Magistrate Masulipatam, under S.144, Criminal P.C. On a petition filed on 2-7-1952 by one Bondalapati Thatayya against one Gollapudi Basavayya and 13 others an order was passed under S.144, Cl.(2), Criminal P.C. by the Additional First Class Magistrate on 7-7-1952. Before 7-7-1952 the Additional First Class Magistrate called for a report from the police on the petition filed by the said Thatayya. Before the report was sent, the Court was again moved by the said Thatayya for an emergent ex parte order. It was then the ex parte order was passed on 7-7-1952 restraining the respondents in that petition, who are also respondents here (in Cr. R.C. No.195 of 1953) from interfering with the bodi through which the petitioners were said to have been taking water to their lands. The respondents thereupon presented a petition to rescind that order on 17-7-1952. While that petition was pending Thatayya reported to the Station House Officer on 21-7-1952 that the order under S.144, Criminal P.C. has been violated by the respondents by completely obliterating the entire bodi. On 23-7-1952 the said Thatayya filed a petition before the Additional First Class Magistrate making the same allegations as in the petition to the police and requesting the Court to take action for the disobedience of the order. On a report by the police on 25-7-1952 that the order has been disobeyed, a complaint was filed on 7-8-1952 by the Additional First Class Magistrate before the Stationary Sub Magistrate, Avanigadda for an offence under S.188, Penal Code. This case was numbered as C.C. No.6S1 of 1952. The respondents thereupon preferred a petition on 25-8-1952 before the Additional District Magistrate for withdrawal of the complaint. The Additional District Magistrate withdrew the complaint and it is against that order Cr. R.C. No.195 of 1953 has been filed. The order by the Additional District Magistrate was passed on 9-9-1952.
2. While the petition for withdrawal of the complaint before the Additional District Magistrate was pending the Circle Inspector of Police registered a case against these respondents for offences under Ss.143, 186 and 430, Penal Code, alleging that these respondents have formed themselves into an unlawful assembly, and obstructed a public servant, to wit a police constable, and caused resistance to him, and also stated that they caused diminution of supply of water. This according to the charge-sheet, happened on 28-8-1952. The charge-sheet was filed on 27-11-1952 in C.C. No.1006 of 1952 in Stationary Sub Magistrates Court, Divi. The accused therein filed a petition stating that the Court could not proceed with the case and the petition was dismissed and, it is against the order Cr. R.C No.208 of 1953 has been filed.
3. I will take up first Cr. R.C. No.195 of 1953. Two points are raised in the above revision. The first is that the Additional First Class Magistrate, Masulipatam, when he passed an order under S.144, Criminal P.C. did so as a Court and the complaint filed by him for the offence under S.188, Penal Code is by a public servant acting as a Court and the only authority that could withdraw the complaint is the authority to whom an appeal ordinarily lies from the Court of the Additional First Class Magistrate; that is to say, the only authority that could withdraw the complaint is the Sessions Judge of Masulipatam. The second point is, that even if it is held that the Additional First Class Magistrate, Masulipatam was not acting as a Court, still the authority who could withdraw the complaint is the District Magistrate, and not the Additional District Magistrate, as the Additional First Class Magistrate is subordinate only to the District Magistrate and not to the Additional District Magistrate.
4. In support of his contention that the Additional First Class Magistrate was acting as a Court, when he passed an order under S.144, Criminal P.C
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